I have always maintained that terrorists are best considered as piratical.
Plutarch is credited with the oldest clearest definition. He described pirates as those who attack without legal authority not only ships, but also maritime cities.
That is a definition that is still useful today, although it has been modified to the following:
"Piracy is an act of boarding of any vessel with the intent to commit theft or any other crime and with the intent or capability to use force in the furtherance of that act."
Clearly that applies to boats, but we know it also applies to planes, buses, and cars. In the future it will likely be applied in outer space.
The important point here is not the type of vessel, but the type of behavior. Because the behavior is inherently piratical in nature you cannot divorce the "civic side" from the "piratical side" of a group like Hamas, Mujahedin-e Khalq, or al Qaeda anymore than you can claim that the Mafia has a socially valuable role independent of its criminal activities.
More to the point, it gives us a clear and clean direction forward out of the mess we have been mired in for the last decade.
I think it is important and useful to label Terrorists as Pirates. The label is appropriate. The definition of "Pirate" has evolved over the centuries because the nature of "vessels" and "territorial jurisdiction" has changed. Looking to the future, one can expect this term will eventually be extended into outer space. What has NEVER changed is the recognition that Pirates are violent criminals who prey upon innocent civilians with complete disregard for all law and or national boundaries. This is not merely a semantic exercise.
More importantly, it offers some clear directions for changing the context of current debates regarding terrorism and how we engage in combat overseas. The consequence of this new framework is that one can enumerate specific concrete and legal consequences of participating in, supporting, or aiding piratical groups like Hamas, and Islamic Jihad and al Qaeda.
The Similarities: Piratical groups like Hamas, and Islamic Jihad [and al Qaeda] march under their own flag.
Hamas, Islamic Jihad, etc. operate with total disregard for national boundaries and refuse to recognize the authority of sovereign nations.
They commit acts of violence and murder against unarmed civilians in defiance of all law (including the Geneva Convention).
They commandeer vessels to do this (be they boats, planes, or buses).
They may have initially been motivated by religious zealotry (like the Corsairs) but clearly have given that up a long time ago (also like the Corsairs).
These groups are supported and even compensated by governments (e.g., Iran, Syria,Saudi Arabia, and Iraq) which makes them a sort of Privateer. Obviously this is a double-edged sword as the United States also engages in similar behavior - most recently in Iraq with supporting the Mojahedin Khalq, a group that is formally recognized by the United States as a terrorist organization.
Consequences: One consequence of this is that Terrorists become nothing more than dangerous criminals. There is no glory, no romantic notion.
A second consequence of all this is that if Terrorists are distinguished from Freedom Fighters but not from Pirates, then they are hostis humani generis - whom any nation may in the interest of all capture and punish.
Defining Terrorists as Pirates blows a hole in the canard of "one man's terrorist is another man's freedom fighter." Clearly Freedom Fighters must be able to distinguish themselves from Pirates. For one thing, they will have to deal with the rest of the world if they actually win. This means true freedom fighters have to operate according to the laws and customs of war. As ridiculous as that sounds, "the laws of war" actually do exist and make sense in the context of their internally consistent macabre logic.
A final consequence of this is that states which provide safe haven to these:
Pirates become accountable for their damages. Historically, piracy was suppressed by attacking the land bases of pirates. Pirates count on their land bases being secure from attack. In some cases pirates enjoyed the protection of powerful individuals with clandestine official support from regional governments. However, land is also the pirates' weakest point. It is where law enforcement has the best chance to succeed in catching them.
Clearly, today this means going after financial institutions and similar sources of support. Equally clear is that means any government lending clandestine support to pirates can expect to be held accountable.
In extreme cases, where the distinction between the piratical scourge and a patron government is erased, i.e., in the case of the Taliban and al Qaeda, all parties would naturally be subject to the same treatment.
The point here is that legal methods which can be supported by all nations are available for dealing with piratical threats. By staying within these legal frameworks, countries which seek redress or who resort to force in their own defense, will have much broader support in the international community. That support is critical for any long-term success. Going outside accepted legal frameworks is merely a national indulgence in vigilante justice. That may appease the masses who love to watch a good hanging, but it invariably creates more problems than it solves.
Historical Piracy: Piracy has been around for awhile, Plutarch described pirates as those who attack without legal authority - not only ships, but also maritime cities. The first application of international law actually involved anti-pirate legislation as most pirate acts were committed outside the borders of any country. It is a well accepted legal principle that a pirate may be judged by the courts of any country, even one whose ships he never robbed, because their actions are so universally threatening and do not fall within the boundaries of national legal frameworks. In other words, there is no country which can be called a "safe haven" for pirates.
There is no question the pirates who held Caesar hostage were real. And he was real serious when he told them he was going to come back and kill em all too.
Some question whether young Caesar's revenge was an act of justice, or enacted in order to enhance his reputation as a bold and decisive man of action. When Caesar and his mercenaries arrived at the pirates' island, the original group of kidnappers had been joined by several more pirate crews--so the total number of pirates may have been 350 or greater. Most, if not all were inebriated, celebrating the rich ransom haul obtained from young Caesar. Caesar's soldiers were able to surround the pirate camp and demand surrender. Due to their drunken condition, the pirates were unable to offer a defense and immediately agreed to the Romans' demands.
The many pirates who had not been involved with the kidnapping of Caesar protested that they should not be arrested, because they had committed no crime against Caesar. However, Caesar ignored this plea, claiming that all the captured men were pirates and, therefore, criminals.
Hundreds of pirates died because of Caesar's plotting. Over the objections of the local governor, and of the pirates who were not involved with the original kidnapping, Caesar persisted in his demand for capital punishment. Was this truly justice? That is a potentially interesting point. Nonetheless, Caesar indeed had them crucified. However Ormerod notes he first had their throats slit as an act of mercy. (Plutarch, Caesar, 2; Ormerod, p232)
Given Plutarch's sentiment and the fact Caesar could get some form of formal judicial approval, I don't think it was accepted as an alternative lifestyle. Even Homer spoke ill of marauders. There is a point in the Odyssey where the king decides to help Odysseus after he has proven himself manly etc. but even as he does so he comments something to the effect he hopes he is not helping someone who wanders around plundering, etc. So this problem is as old as gold, wicked men, and fast boats.
Historical Evolution:
Plutarch is credited with the oldest clearest definition. He described pirates as those who attack without legal authority not only ships, but also maritime cities.
It is a well accepted legal principle that a pirate may be judged by the courts of any country, even one whose ships he never robbed, because their actions are so heinous and so generally threatening and do not fall within the boundaries of national legal frameworks. In other words, there is no country which can be called a "safe haven" for pirates. In fact, the classic example of an international crime is that of piracy jure gentium. A person who committed this crime, "is treated as an outlaw, as the enemy of all mankind - hostis humani generis - whom any nation may in the interest of all capture and punish."
Wheaton defines piracy by law of nations as "murder or robbery committed on the high seas by persons acting in defiance of all law, and acknowledging obedience to no flag whatsoever." The modern definition of piracy is a bit more specific. Article 15 of the 1958 Geneva Convention of the High Seas and Article 101 of the 1982 UN Convention on the Law of the Sea defined piracy as a "violent seizure on the high seas of a private ship or the illegal detainment of persons or property aboard said ship for the purpose of private gain." This definition limited piracy to crimes committed against private property or citizens. Also, the act must occur in international waters. Finally, greed must be the motivating factor behind the crime. The definition failed to address acts of piracy committed: by governments, not on international waters, or for political purposes.
Piracy to further some political agenda is exemplified in the case of the Achille Lauro. In October 1985 Palestinian guerrillas hijacked the Italian cruise ship while in Egyptian territorial waters. They demanded the release of 50 countrymen held by the Israelis before they would release the hostages. The Achille Lauro attack was instrumental in the creation of the Rome Convention of 1988 by the International Maritime Organization -- this specifically redefined piracy so that simple greed or financial gain was no longer required to treat such acts as piracy.
Hijacking of the airliners on 9.11 is a very good example of piracy which does not occur in international waters. Under the United Nations Convention on Law of the Sea of 1982, piratical acts are committed on the high seas or in a place outside the jurisdiction of any state. Most of the present day acts take place within the territorial waters of a sovereign state. Whilst this may be legally relevant, such a distinction is irrelevant in the eyes of the victim.
Piracy jure gentium is the classic example of an international crime. A person who committed this crime, "is treated as an outlaw, as the enemy of all mankind - hostis humani generis - whom any nation may in the interest of all capture and punish. Obviously, not all piracy is the same. There are two types of pirates that seem most relevant to the current terrorist crop.
One type of pirate was the Corsair. These pirates operated in the Mediterranean and bedeviled the Crusaders. Corsairs were authorized by their governments to prey upon the shipping lanes of Christian countries. For example, the Maltese Corsairs initially fought for religion, but after a while the rewards of piracy grew to greater appeal. Soon the Maltese Corsairs were full-fledged pirates, with no interest in religious ideals.
The second type of pirate was the Privateer. These are most like the terrorist groups under discussion. A privateer was a pirate who by commission or letter of marque from the government was authorized to seize or destroy a merchant vessel of another nation. The privateer was used as a cheap means of weakening the enemy by frequenting shipping routes (avoiding the costs related to the maintenance and creation of a navy). The most popular form was to give a license to a private sailor to attack enemy shipping on behalf of a specific king. Very often a privateer when caught by the enemy was tried as an outlaw notwithstanding the license.
Contemporary Piracy: The modern definition of piracy is a bit more specific. Article 101 of the 1982 UN Convention on the Law of the Sea define piracy as a "violent seizure on the high seas of a private ship or the illegal detainment of persons or property aboard said ship for the purpose of private gain." That definition limited piracy to crimes committed in international waters against private property or citizens. Also, greed had to be the motivating factor behind the crime. The law failed to address acts of piracy committed: for political purposes, not on international waters, or by governments.
In October 1985 Palestinian guerrillas hijacked the Achille Lauro, an Italian cruise ship, while in Egyptian territorial waters. They demanded the release of 50 countrymen held by the Israelis before they would release the hostages. Because it was not done for financial gain, this made them terrorists rather than pirates, and they were eventually convicted of offenses related to the hijacking and murder of an American passenger rather than acts of piracy.
The legal definition for piracy was expanded in 1988 by the International Maritime Organization as a direct result of the Achille Lauro affair. Specifically including acts of violence and murder that were not purely for monetary gain, in that case for political purposes.
Hijacking an airliner, known as "air piracy," is a very good example of piracy which does not occur in international waters. 9/11 would be an excellent example of one scenario since all the activities occurred within sovereign territory.
Technically, a government cannot commit an act of piracy because governments are not private citizens. Traditionally, the privateer is the subject of any legal action, not the country offering the letter of marque. However, in cases like Saudi Arabia or Iraq, where they provide monetary compensation to families of suicide bombers one certainly has a hard time drawing a distinction between the privateers and their sponsors. It is even more difficult in cases like Syria where the government not only provides safe haven to these pirates, but directly benefits from their actions as they have in Lebanon. The most direct connection of course was in Afghanistan where the Taliban, having basically taken over, proceeded to provide safe haven for piratical elements. This is common in every "failed state" situation, including Somalia.
Under the United Nations Convention on Law of the Sea of 1982, piratical acts are committed on the high seas or in a place outside the jurisdiction of any state. Most of the present day acts take place within the territorial waters of a sovereign state. Whilst this may be legally relevant, such a distinction is irrelevant in the eyes of the victim. It is for this reason the ICC International Maritime Bureau (IMB) adopted the following definition which could easily have been applied to the air piracy that occurred on 9.11 over New York, Washington, and Pennsylvania:
"Piracy is an act of boarding of any vessel with the intent to commit theft or any other crime and with the intent or capability to use force in the furtherance of that act."
Going Forward, with Consistency
Pirates are not, today, the ONLY "hostis humani generis."
The World Court of Justice in the Hague has ALSO defined the former leaders of governments, including Argentina in the 1970s, who torture their citizens as "hostis humani generis" who may be apprehended by third parties, and for whose crimes, if serious enough, there is no statute of limitations.
The possible crimes happen to include the destabilization of another sovereign state by violent and illegal means such as may have happened on another "September 11", the overthrow of a democratically elected if Marxist state in Chile, probably assisted by the United States. As a result of the fall of Allende, thousands of Chilean citizens were detained and in many cases tortured or judicially murdered for their political views and not their crimes.
There are people and serious international lawyers who regard Henry Kissinger, who took part in Allende's overthrow, as an example of an hostis humani generis. There are even more people who regard the invasion of Iraq as "hostis humani generis."
I do not say this to be shrill or to condemn my own government, at least on this forum, although by my own Constitution I retain that right. I am instead pointing to the fact of a growing body of law and received and accepted opinion. By grounding our actions in these historical precedents and respected bodies of law we will find our way out of the quagmire known colloquially as "the Bush Doctrine" that continues to damage us.
If the president continues to distinguish indigenous uprisings (like the Arab Spring) from piratical scourges (like we see in Somalia) and act accordingly, I believe we may be witnessing the birth of a new doctrine, a return to International Law.